Nanaimo courthouse, where a B.C. Supreme Court case was held in the fall around indigenous smudging in a public school classroom. (News Bulletin file photo)

Port Alberni mom who claimed indigenous smudging ceremony infringed on religious freedoms loses case

B.C. Supreme Court judge releases ruling in Servatius case against Alberni school district

A B.C. Supreme Court judge has ruled against a Vancouver Island mother who claimed her daughter’s religious rights were violated when an indigenous smudging ceremony was performed in her elementary school classroom.

Candice Servatius, an evangelical Christian from Port Alberni, had filed a petition in the Supreme Court of B.C. against Alberni School District 70, claiming that her daughter’s rights to religious freedom were infringed on when she participated in a Nuu-chah-nulth smudging ceremony at John Howitt Elementary School in September 2015.

Servatius also said the school district breached its duty of neutrality and that her daughter experienced “anxiety, shame and confusion as a result” of the ceremony.

The Attorney General of B.C. and the Nuu-chah-nulth Tribal Council were also named in Servatius’s petition, which sought a court-ordered ban on smudging in schools across the province.

A week-long hearing took place in a Nanaimo courtroom late last year. The core of hearing focused mainly on the events that occurred at the Port Alberni school in September 2015 but also included an indigenous hoop dance ceremony and prayer that took place during a school assembly in January 2016.

RELATED: Student tells Nanaimo courtroom she wasn’t allowed to leave indigenous smudging ceremony

In his ruling released on Wednesday, Justice Douglas Thompson dismissed the case, explaining that Servatius “failed to establish” that the smudging ceremony infringed on her or her children’s “ability to act in accordance with their religious beliefs.”

Jay Cameron, Servatius’s lawyer, said in a press release that his team is reviewing its next steps and that Thompson’s ruling is “disappointing” for people from “any religion or cultural background” and that they have the constitutional right to be free from “state-compelled” spirituality.

Judith Sayers, Nuu-chah-nulth Tribal Council president, said the council is “very pleased” with the court’s decision and that Servatius was trying to “redefine” their cultural practices as religious practices.

“Smudging does not fit into the categorization of a religious practice, nor should it be made to. To attempt to do so, is to attempt to force ancestral practices into square boxes which the courts have said cannot happen,” Sayers said in a press release.

RELATED: Province argues in B.C. Supreme Court for smudging in schools, says it relates to curriculum

In his 47-page ruling, Thompson said one’s religious freedom is not compromised when students are taught about other beliefs.

“Being taught about beliefs is not an infringement of religious freedom – even when taught by an elder at close range and in a manner that engages the student’s sense of smell as well as her sense of sight and sound and even if this teaching results in some cognitive dissonance,” Thompson wrote.

The judge said while Servatius “does not oppose the incorporation of indigenous worldview” into the province’s curriculum, he noted that there is “some irony” to her position that the smudging ceremony and hoop dance performance amounted to religious indoctrination and noted that the Alberni Indian Residential School, which was operational from 1891 until 1973, was located about four kilometres away from John Howitt Elementary School.

In her affidavit, Servatius’s daughter said she was forced to remain in the classroom while the smudging ceremony took place and that “there was so much smoke” she had difficulty seeing.

RELATED: Teacher says student was ‘happy’ to watch smudging ceremony at Vancouver Island school

But in his ruling, Thompson said Servatius’s daughter’s memory of “important details” was “not accurate” and that claims of coercion and being uncomfortable during the ceremony were false. He also said Servatius’s daughter did not raise her concerns with her teacher, despite claiming she did and that the room was not filled with as much smoke as she described.

“In no classroom were the students, their desks, or their belongings smudged,” Thompson wrote. “In each classroom, the students’ participation was limited to learning: observing, listening, and taking in the smell of the burning sage.”

RELATED: ‘Our culture is not a religion,’ indigenous educator tells Nanaimo court in case of smudging at school

RELATED: Smudging in B.C. classroom had ‘trivial’ impact on Christian family’s faith, says school district’s lawyer

Speaking to the News Bulletin, Cameron explained that his client has no issue with her children learning about different cultures including indigenous culture in school, but the government went too far with her daughter.

“She wants to keep the government in its lane,” he said.

Asked whether he would appeal the ruling, Cameron said he is reviewing all their options but no decision has been made at this point, only that he disagrees with the conclusion Thompson reached.

“We think that anytime the government imposes on free citizens a spiritual or supernatural or religious ceremony, especially with little kids, that is an infringement of [the Canadian Charter of Rights and Freedoms] and we respectfully disagree with the judgment,” Cameron said.

Should Cameron decide to appeal the ruling, he said one of the things he will be looking at is Thompson’s rejection of Servatius’s daughter’s evidence because the lawyer said there are “a number” of witnesses who can corroborate the girl’s version of events.



nicholas.pescod@nanaimobulletin.com

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